The Labor enquirer., 1887-04-23

Aoro 10 tno LAW VI tnlS hepuDlC as 10
what treason is:
Erparte Ballman and Erpase Swart-
mont. 4 Cranch. u s. Supreme Court
Reports, PIP. 75-6:
| SYLLABUS.
To constitute treason war must be act
ually levied.
A conspiracy to subvert the government
BY force, il NOT treason.
The mere enlistment of men, who are
not assembled, is not levying of war.
Opinion Of Chief Justice MARSHALL:
Treason against the United States
shall consist only in levying war against
them, OF in adhering to their enemies,
giving them aid and comfort"
To constitute that specific crime for
which the prisoners now before the court
have been committed, war must be act
ually levied against the United States.
However aagitious may be the crime of
conspiracy to subvsrt by force the govern
ment Of our country, such conspiracy is
not treason. To conspire to levy war, and
actually to levy war, are two distinct
offenses. The first must be brought into
open action by the assemblage of men for
purpose reasonable in itself, or the
fact Of levying war cannot have been
committed. So far has this principle been
carried, that, in case reported by Ven
tres, and mentioned in some modern trea-
tises on criminal law, it has been deter
mined that the actual enlistment of men
to ser We against the government does not
amount to levying war. 1t is true that in
that case the soldiers enlisted we're to
serve without the realm, but they were en-
listed within it, and if the enlistment for
a reasonable purpose could amount to
levying war, then war had been actually
levied.
1t is not the intention of the court to
say that no individual can be guilty of
this crime who has not appeared in arms
against his country. On the contrary, if
war be actually levied, that is, if a body
of men be actually assembled for the pur-
pose Of effecting by force reasonable
purpose, all those who perform any part,
however minute, or however remote from
the scene of action, and who are actually
leagued in the general conspiracy, are to
be considered as traitors. But there must
be an actual assembling of men for the
reasonable purpose to constitute levy
ing Of war.
Grimes so atrOciOus as those which have
for their object the subversion by violence
of those laws and those institutions which
have been ordained in order to secure
the peace and happiness of society,
are not to escape punishment because
they have not ripened into treason. The
wisdom of the Legislature is competent
to provide for the case; and the franz
ers Of our institution, who not only
defined and limited the crime, but with
jealous circumspection attempted to
protect their limitation by providing that
no person should be convicted of it, unless
on the testimony of two witnesses to the
same overt act, OF on confession in open
court, must have conceived it more safe
that punishment IN such cases should be
dained by general laws, formed upon
deliberation, under the influence of no re.
sentiments, and without knowing on whom
they were to operate, than that it should
be inflicted under the influence of those
passions, which the occasion seldom fails
to excite, and which flexible definition of
the crime, or a construction which would
render it flexible, might briug into opera
tion. It is, therefore, more safe as well
as more consonant to the principles of
our constitution, that the crime of treason
should not be extended by construction
to doubtful cases; and that crimes not
clea arly, within the constitutional definition
should receive such punishment as the leg
islature in its wisdom may provide.
To complete the crime Of levying war
against the United States, there must be
an actual assemblagc of men for the pur-
pose Of executing reasonable design In
the case now before the court, design to
ovsrturn the government Of tho United
States in New Orleans BY force, would
have been unquestionably design, which
If carried into execution, would have been
treason, and the assemblage Of party Of
mon for tho purpose Of carrying II into
lc1ecution would amount TO levying Of val